A good case can be made that the overcriminalization of the law is among America’s most serious national problems. True, America’s economic troubles are deep and may reduce us to a poor, strife-ridden nation like Greece. That is unquestionably bad. But it is also unquestionably bad when people who have not deliberately done anything wrong — and often have not done anything wrong at all — can be subjected to vicious military-style raids, tried before judges who don’t seem to care about injustice, and then sent to prison.

Most Americans are aware of the government-caused economic debacle, but very few realize how badly the American legal system has been perverted. That’s why I strongly recommend One Nation Under Arrest. If you read the book, you will be outraged at the injustices the authors describe. You may find yourself thinking, “This seems like the way people were treated in the Soviet Union. America should be different.”

The essays in the book are chock full of well-documented cases where prosecutors have terrorized and ruined people who had harmed no one, their “crimes” consisting of accidents, inconsequential violations of regulations, conduct that ran afoul of ridiculous “zero tolerance” policies, and more. The real criminals (alas, always nameless) are the hyper-zealous government officials who benefit from the abuse of power but are never held to account for it.

Ready for an example? How about the case of George Norris, a 67-year-old Houston resident who loved orchids and made a small amount of money selling them. He was hit with a SWAT team raid that had been ordered by a publicity-hungry official in the U.S. Fish and Wildlife Service (FWS). Norris had neglected to send copies of his permit to import a certain new orchid variety to a buyer — a person who was actually an FWS decoy. The government wanted to catch someone it could nail as a criminal violator of a treaty called Convention on International Trade in Endangered Species (CITES) that the FWS is charged with enforcing. The FWS wanted to prove how tough it was with alleged illegal–orchid importers and when Norris didn’t do all the paperwork, it had its man.

Heavily armed federal agents ransacked Norris’s little home and greenhouse while he was held by an agent in his kitchen. That agent refused to answer any questions but eventually handed Norris the search warrant they had obtained. Norris couldn’t read it without his glasses, but he was not allowed to get up even to get them. The agents hauled away many boxes full of his business records, his computer, and computer disks. His home was a mess and his business a wreck, but Norris was not arrested at that point.

His arrest would occur about six months later. Following his indictment on seven charges (violations of the CITES, the Endangered Species Act, and — because he had mislabeled an orchid — making a false statement to a government official), Norris was arrested, put in handcuffs and leg irons, and locked in a cell with three hardened criminals. At least the latter got a laugh out of the idea that an elderly orchid enthusiast was getting the same treatment they were.

Norris entered a plea of not guilty, believing that he had committed nothing worse than a paperwork oversight. Unfortunately, he could not afford to keep up the legal battle and therefore decided to change his plea to guilty. The government then asked for a sentence of up to 41 months in prison, but the judge made it “only” 17 months, sanctimoniously telling Norris that he should try to make some good come out of his wrongdoing.

George Norris entered a federal prison in Texas on January 10, 2005, but was released a year later while the 11th Circuit Court of Appeals reviewed his case. But the judges on that court upheld his conviction and sentence. When Norris was returned to prison, officials there, angered that he had gotten out of their control briefly, held him in solitary confinement for 71 days.

Finally Norris was released in 2007. His life had been wrecked and his business destroyed, thanks to federal officials who wanted to make an example of an “orchid criminal.” Did any of those bureaucrats ever stop to wonder whether ordering a SWAT raid on an elderly man over a paperwork oversight was appropriate? Did any care that their vicious pursuit of publicity ruined the life of a perfectly decent and harmless man?

We just don’t know. Not in this case or any of the many other similar ones recounted in the book do we ever find out anything about the power-hungry people in authority who like throwing their weight around.

Crimes and torts

At the root of this problem, the editors and writers argue, is the erosion of one of the most fundamental distinctions in our legal tradition, namely the distinction between crimes and torts. Under common law, no one may be charged with a crime without proof that he acted with a guilty mind — the mens rea requirement. That is, the person charged had to have meant to do wrong. In his chapter on the history of criminal law, Paul Rosenzweig writes,

Reducing or eliminating intent as a part of the definition of crime blurs the distinction between criminal law and civil law. It confuses traditional criminal behavior that society seeks to eradicate and risky behavior that society seeks to regulate. This trend also erodes the moral foundation that underlies the concept of crime. Without this foundation, criminal law may be nothing more than the whim of legislatures.

Rosenzweig is correct, and it is shocking that we have reached the point at which mere accidents can lead to criminal prosecution. One of the cases discussed involved a supervisor on a construction site in Alaska. The man, Edward Hanousek was responsible for a rock-quarrying operation when a backhoe operator accidentally hit and ruptured an oil pipeline, causing oil to spill into a river nearby. The operator had violated company instructions in the way he had used the machinery. At the time of the accident, Hanousek was not even on duty.

Federal authorities prosecuted Hanousek under the Clean Water Act, accusing him of the “crime” of failing to adequately supervise and thus causing a discharge of pollutants. They won the case, naturally. Poor Hanousek was sent to prison for six months for not having prevented an accident when he was not even on the scene. If someone else’s accident can land you in prison, are any Americans safe from their “justice system”?

One of the areas of the law where recent expansions put innocent people at risk is the phenomenon of “zero tolerance” policies in public places, especially schools. An appalling case discussed in the book is that of Lindsay Brown, a high-school senior in Ft. Myers, Florida. On a day in the spring of 2001, she was hauled out of class by a school security officer and taken to the parking lot. Some nosy person walking past her car had noticed a kitchen knife on the floor. Lindsay couldn’t remember how it might have gotten there, but no matter — having a knife on school grounds was a violation and it didn’t matter that the knife was only the sort you’d use for spreading peanut butter.

Lindsay was taken to the school’s Resource Office for interrogation. Why is there a knife in your car? What do you plan to do with that knife? Under relentless questioning, she got panicky, making the ordeal all the worse. School officials called the police, who handcuffed her and took her to the county jail, where she spent nine hours. She was released after her parents posted bail of $2,500. The charge against her: felony weapons possession. That caused school officials to suspend her for five days and bar her from graduation ceremonies.

Asked to justify this harsh treatment, the school principal simply said, “A weapon is a weapon is a weapon.”

Lindsay later remembered how the “weapon” had gotten into her car. The previous weekend, her family had moved and the knife had slipped out of a box onto the floor of her car. But of course, that had no bearing, since “no tolerance” means that reasons are irrelevant.

At least Lindsay escaped without a criminal record. The prosecutor admitted that he could not prove beyond a reasonable doubt that Lindsay had known the knife was in her car and decided to drop the charges. So she escaped being branded as a felon only because the prosecutor couldn’t prove that she had known about the knife — not because she had never intended any harm.

Voluminous and incoherent

Another reason that Americans are now so much in danger from malicious prosecution is the fact that we now have such a profusion of laws, many of which are vaguely written. In his excellent essay “Blameworthiness and Intent,” Cato Institute scholar Tim Lynch quotes James Madison:

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow….

Sad to say, the Supreme Court has chosen to allow Congress and state legislatures to enact criminal laws where one’s innocence or guilt depends on what judges and juries think is “unreasonable” or “excessive” or other imprecise terms. Lynch also argues that the old legal maxim “Ignorance of the law is no excuse” needs to be jettisoned (at least where criminal prosecution is concerned), writing, “It is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral.”

Now that the executive branch is under the control of a former professor of constitutional law, are those problems receding? No, they’re actually getting worse. Barack Obama’s administration has done nothing to rein in the abuse of prosecutorial power; instead, it has given us a new “hate crimes” bill that will bring federal involvement with any alleged crime where the victim is in a “protected class.”

One Nation Under Arrest is a book that will make you angry and frustrated. You will be angry at the horrible mistreatment of honest people by government officials who seem to lack any sense of decency. You will be frustrated by the realization that almost no politician ever discusses the need to ratchet down America’s badly overcriminalized society. Politicians blather away constantly about their desires to enact new laws, but when have you ever heard one say, “I will do all I can to stop the needless use of SWAT raids, the jailing of people over mistakes and accidents, and the practice of using criminal prosecutions as a public-relations stunt”? I haven’t.

Rosenzweig, Walsh, and the contributors may be tilting at windmills, but theirs is a message that Americans desperately need to hear.

This article originally appeared in the November 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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George C. Leef is the research director of the John W. Pope Center for Higher Education Policy in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.

Reading List

Prepared by Richard M. Ebeling

Austrian economics is a distinctive approach to the discipline of economics that analyzes market forces without ever losing sight of the logic of individual human action. Two of the major Austrian economists in the 20th century have been Friedrich A. Hayek, who won the Nobel Prize in Economics, and Ludwig von Mises. Posted below is an Austrian Economics reading list prepared by Richard M. Ebeling, economics professor at Northwood University in Midland and former president of the Foundation for Economic Education and vice president of academic affairs at FFF.